My Summer Internship & ICTR in the News

My Summer Internship at the ICTR:
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The purpose of the ICTR Internship Programme is to provide participants specialized in fields relevant to the work of the Tribunal with practical experience to complement their field of study, and to enhance understandings of how the ICTR attempts to find international solutions to problems posed by massive episodes of violence.
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My interest in the historical context of the violence in Rwanda and the subsequent prosecutions of war crimes, crimes against humanity, and genocide developed during my undergraduate studies. Having a special interest in advocacy on behalf of gender and sexual violence victims, I was especially interested in the mass sexual violence systematically perpetrated against Tutsi women in Rwanda that constituted a key element of the ethnically charged conflict. Within the span of the 100 days of genocide in 1994, thousands of women were raped and held in groups as sexual slaves, often times raped to death and left nude and in public view, as part of the hate propaganda that demonized Tutsi women’s sexuality and further fueled the violence. The ICTR is groundbreaking in its attempt to establish international justice through prosecution of sexual violence. The ICTR’s opportunity to do so, however, has in many ways fallen short, and I would like to learn more about how the international justice process can make the prosecution of sexual violence a greater priority in the future, and how it can better attain justice and provide care and protection for rape survivors and victims in such cases of massive conflict.
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More generally, I am also eager to develop a better understanding of the opportunities in the future for international efforts to establish truth, justice, and reconciliation in the aftermath of genocide and mass violence through my experience at the ICTR and through my interaction with its policies and programmes. Furthermore, I am interested in understanding the ongoing development of residual issues that arise as the ICTR prepares to close, including arrangements for the trial of fugitives arrested after the ICTR closes, the transfer of current cases to national jurisdictions, the fate of those convicted by the tribunal and of the remaining eleven fugitives, the preservation of evidence, the storage of archives, and the development and location of an inevitable residual mechanism of the Tribunal. It is in these last months of the ICTR’s mandate that lessons learned from its decade and a half of operation will crystallize as the international community attempts to find the best way to address international crimes in the future so that the slaughter of thousands in Rwanda will not have been in vain.
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I will complete my internship in the Chambers Legal Support Section, which is part of the Registry branch of the ICTR. This summer I have been assigned to Chambers III to work on the Karemera et al. case, the most notorious current case at the ICTR. A section of Chamber III sits on the case composed of Judge Charles Michael Dennis Byron of Saint Kitts and Nevis, presiding, who has also served as President of the ICTR since 2007, Judge Gberdao Gustave Kam of Burkina Faso, and Judge Vagn Joensen of Denmark. The Karemera et al. trial has gone on since 2001, its complexity evidenced by the fact that it is the source of 90% of all ICTR motions. It has come to focus on three alleged architects of the genocide: Édouard Karemera, former Minister of the Interior, Joseph Nzirorera, former President of the National Assembly, and Matthieu Ngirumpatse, former President of the Mouvement républicain national pour la démocratie et le développement (MRND). After 300 trial days, 50 remain, and the case is at its most crucial stage from the chambers’ perspective: the end of the close of the defense’s evidence, and the start of the decision drafting.
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Much of my internship will involve legal research and writing. In particular, I will be preparing memoranda, summarizing witness testimonies, analyzing party submissions, and drafting judgments on motions. In the first two weeks, I have undergone general training on the history and development of the ICTR, its structure, and the goals and challenges of each branch. Additionally, I have also completed substantive training focused on the crimes charged in the Karemera et al. indictment, including genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, and complicity in genocide. Also covered were rape and extermination as crimes against humanity, and violence to health and physical or mental well-being and murder as violations of common article III. Substantive training also focused on forms of liability relevant to the indictment, including individual criminal responsibility, joint criminal enterprise, and command responsibility.
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Last week, I began my first witness assignment. My typical workday involves waking up early to a cold shower, and taking a 200 schilling dala-dala ride to town on a minivan packed with at least 15 local people sitting on each others’ laps driven down routes created by the drivers as they go. At the ICTR compound- which at seven stories high was until recently the tallest building in Arusha- I share an office with four other interns in the Chambers section. For now, I spend my work days reading witness transcripts, flagging parts relevant to the indictment, entering in relevant facts to the ICTR Chambers database, and composing witness summaries that highlight the witness’ relationship to the accused, and potential impeachment issues.
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When trials are in session, interns are able to sit in the viewing section for observation. This morning I did so, as the Appeals Chamber has come down from The Hague to hear two appeals at the ICTR this week. I sat in on the defense’s oral argument in the appeal of Callixte Kalimanzira vs. Prosecutor. The defense counsel opened by referring to the arrest of Peter Erlinder, which I will discuss below, and expressing his concern for ramifications of the arrest for all ICTR defense counsel. Some of the points that he further made are common of defense appeals at the ICTR. First, he addressed witness credibility issues, specifically noting that many of the prosecution’s witnesses are being held in poor conditions in jails in Rwanda, where the implication of former authorities in confessions is seen by many as their only way out as it is encouraged by Rwandan authorities. Defense counsel also argued that the Prosecution did not put Kalimanzira on sufficient notice of the charges against him. He argued that given the Prosecution’s significantly greater period of investigation of the charges against Kalimanzira (8 years) as well as the Prosecution’s disproportionately expansive resources and funding (estimated budget several times that provided for defense), the vagueness of the indictment and pre-trial submissions is not acceptable.
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ICTR in the News:
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The talk of the town for the last two weeks has most definitely been the arrest of Peter Erlinder- an American lawyer at the ICTR who served as defense counsel in the Military I case and who currently serves as counsel on the appeal- on May 28th in Rwanda, where he is being held for denying and minimizing genocide- a crime under Rwandan law- and for spreading rumors likely to threaten national security. Last Monday, Mr. Erlinder was denied bail, and it was determined that he will spend the next 30 days in jail in Rwanda until his trial begins.
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Mr. Erlinder’s trip last month to Rwanda was unrelated to his duties at the ICTR, and was made to represent opposition leader Victoire Ingabire, a presidential candidate who returned from exile recently to contest the August presidential election and who has also been charged with negation of genocide. His arrest and charges, however, allegedly stem from his public statements and writings, which criticize the ICTR for failing to prosecute crimes by the RPF within its jurisdiction, and which implicate President Kagame and other members of the current government in playing a role in shooting down the presidential plane in 1994, which he argues triggered the genocide.
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Last week, Peter Robinson, arguably the most famous defense attorney at the ICTR currently serving as lead counsel for Joseph Nzirorera (one of the three accused on the Karemera et al. case to which I am assigned), moved to withdraw as counsel, and called for delay in his client’s trial until the grounds for the arrest of Mr. Erlinder are clarified by the Rwandan authorities. Mr. Robinson claims that fear of potential arrest by other ICTR attorneys may hinder their ability to represent their clients. Mr. Robinson, among others, argues that Mr. Erlinder’s arrest was related to his work at the ICTR, and therefore threatens the work of all defense counsel at the Tribunal. If so, this would violate Article 28 of the ICTR Statute, which ensures states’ cooperation with the investigation of cased for trial at the ICTR. It would also violate the Memorandum of Understanding, which establishes cooperation between the ICTR and Rwanda, and ensures immunity for ICTR defense counsel in their investigations and freedom of movement and action in Rwanda. The Tribunal, however, is not in agreement with Mr. Robinson, and fails to see the link between Mr. Erlinder’s arrest and potential hindrances to Mr. Robinson’s ability to represent his client, and thus last week initiated contempt proceedings against him.
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The ICTR has clearly taken a cautious position, demonstrating a willingness to believe that the arrest of Mr. Erlinder was indeed personal, and not linked to his work at the ICTR. On May 31, the ICTR sent an official note verbal to the Rwandan authorities, requesting clarification of the grounds for Mr. Erlinder’s arrest, specifically whether it is related to his stance taken in defense of his client at the ICTR. The Prosecutor General of Rwanda responded on June 2 that Mr. Erlinder’s arrest was not related to his duties at the ICTR, and the government of the Rwanda pledged to comply with the Memorandum of Understanding. If this is the case, Article 28 cannot properly be invoked against Rwanda, and there would not be grounds for reporting Rwanda to the UN Security Council for noncompliance. The Tribunal finds support for its cautious stance on the matter in the fact that defense teams have, and continue to, travel to Rwanda to investigate their cases without interference by the Rwandan authorities. Furthermore, Mr. Erlinder is clearly not an average ICTR defense attorney, as he has made many public statements about his views on the genocide and ICTR prosecutions, is a published author. Furthermore, before his arrest, he had filed suit against President Kagame for wrongful death of the former presidents of Rwanda and Burundi who died in the 1994 plane crash.
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Today I read the High Court of Gasabo decision in Public Prosecutor v. Erlinder, 11 June 2010, which concluded that the Prosecutor’s grounds for the charges against Mr. Erlinder have merit and are supported by evidence. The most problematic section in my opinion is where it states that Mr. Erlinder “denied and minimized the genocide in Military I, in which he was ICTR Defense Counsel” and did so “by stating that the soldiers he was defending neither planned nor carried out the genocide.” Although the decision goes on to focus on other incidents of negationism found in Mr. Erlinder’s public statements and writings, the explicit link made between his denial of genocide and work as ICTR defense counsel is very troubling. I expect, however, that the ICTR will maintain its cautious stance until more concrete evidence arises to suggest that his arrest and charges stem directly from his work at the ICTR.